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Copeland v. State

Florida Court of Appeals, Fifth District

August 23, 2019

JASON A. COPELAND, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Lake County, Mark J. Hill, Judge.

          James S. Purdy, Public Defender, and Raymond M. Warren and Brian F. Smith, Assistant Public Defenders, Daytona Beach, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.

          LAMBERT, J.

         Jason A. Copeland was convicted after trial of aggravated assault with a deadly weapon resulting from a "road rage" incident. He raises two arguments in this direct appeal, one of which we find to be dispositive. We agree that, on the face of the record, Copeland's trial counsel was ineffective for failing to request a jury instruction for the justifiable use of nondeadly force. Accordingly, we reverse.[1]

         Copeland and the victim, Troy Twigg, both testified at trial. Without going into great detail, Copeland was riding on his motorcycle, and Twigg was driving his car in the same direction on U.S. Highway 27 in Lake County, Florida, when their respective driving patterns apparently became disagreeable to each other. They do agree, however, on one thing: Copeland pulled out a handgun. Twigg testified that Copeland pointed the gun at him and threatened to kill him. Copeland denied making any threats, testifying that he only pulled his gun out to deter Twigg from pursuing him. Notably, Copeland never discharged the handgun.

         At some point thereafter, both vehicles stopped in the road, with Copeland ahead of Twigg. Copeland got off his motorcycle and approached Twigg's car, still holding the gun. Twigg ducked down in his car; and when he looked up, Copeland had retreated to his motorcycle and no longer had the gun in his hand. Twigg testified that he then attempted to exit his vehicle but that Copeland ran back towards him, pinning Twigg between the driver's door and car frame, causing damage to his car window. Copeland disagreed, testifying that he merely approached the car.[2] Eventually, Copeland and Twigg went their separate ways, and Twigg called 9-1-1. Shortly thereafter, Copeland was detained by a deputy from the Lake County Sheriff's Office who recovered a loaded handgun from him.

         At trial, Copeland's sole defense was that he acted in self-defense. He conceded that he displayed the loaded handgun, but testified that he did so only because he was in fear for his life due to Twigg's aggressive driving towards him. During the charge conference, Copeland's counsel specifically requested that the trial court instruct the jury on the justifiable use of deadly force in self-defense, which it did. This instruction provides that a person is justified in using deadly force if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or to prevent the commission of a forcible felony. See Fla. Std. Jury Instr. (Crim.) 3.6(f). Copeland's counsel did not separately request Florida Standard Jury Instruction (Criminal) 3.6(g) on the justifiable use of nondeadly force, which states that nondeadly force may be used when and to the extent a person reasonably believes that such conduct or force is necessary to defend himself or another against the imminent use of unlawful force. See also § 776.012(1), Fla. Stat. (2017).[3]

         Copeland argues that his trial counsel was ineffective for failing to request this nondeadly force self-defense jury instruction. See Aversano v. State, 966 So.2d 493, 495 (Fla. 4th DCA 2007) (recognizing an ineffective assistance of counsel claim on direct appeal for failing to request a specific jury instruction). To prevail on his ineffective assistance of counsel claim, Copeland must show: "(1) that [his trial] counsel's performance was outside the wide range of reasonable professional assistance, and (2) that such conduct prejudiced the outcome of the trial because without it, there is a reasonable probability that the outcome would have been different." See Mathis v. State, 973 So.2d 1153, 1156-57 (Fla. 1st DCA 2006) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Spencer v. State, 842 So.2d 52, 61 (Fla. 2003); Betts v. State, 792 So.2d 589, 589-90 (Fla. 1st DCA 2001)). A "reasonable probability" is explained as "a probability sufficient to undermine confidence in the outcome [of the trial]." Id. at 1157 (quoting Spencer, 842 So.2d at 61).

         Typically, ineffective assistance of counsel claims are not cognizable on direct appeal. Robards v. State, 112 So.3d 1256, 1266 (Fla. 2013). This is because such claims are generally fact-specific and evidence may be necessary to explain why certain actions were taken or omitted by trial counsel. As such, the trial court, in the context of a post-judgment Florida Rule of Criminal Procedure 3.850 or 3.851 proceeding, is the proper forum to receive and evaluate such evidence. See McKinney v. State, 579 So.2d 80, 82 (Fla. 1991). However, in rare instances, ineffective assistance of counsel claims may be addressed on the merits on direct appeal where "(1) the ineffectiveness is apparent on the face of the record, and (2) it would be 'a waste of judicial resources to require the trial court to address the issue.'" Robards, 112 So.3d at 1267 (quoting Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla. 1987)).

         In determining whether this is one of those rare cases, we must first address whether Copeland's actions in brandishing a handgun entitled him to the nondeadly force self-defense jury instruction. When the type of force used by a defendant is clearly deadly or nondeadly as a matter of law, only the applicable instruction should be given. DeLuge v. State, 710 So.2d 83, 84 (Fla. 5th DCA 1998) (citing Stewart v. State, 672 So.2d 865, 868 (Fla. 2d DCA 1996)). However, "[w]here the evidence at trial does not establish that the force used by the defendant was deadly or non-deadly as a matter of law, the question is a factual one to be decided by the jury, and the defendant is entitled to jury instructions on the justifiable use of both types of force." Cruz v. State, 971 So.2d 178, 182 (Fla. 5th DCA 2007) (citing DeLuge, 710 So.2d at 84).

         Here, Copeland's display of his handgun does not fall under the category of deadly force as a matter of law. While a firearm is, by definition, a deadly weapon, [4] "the mere display of a gun, or even pointing a gun at another's head or heart without firing it, is not deadly force as a matter of law." Jackson v. State, 179 So.3d 443, 446 (Fla. 5th DCA 2015). Stated differently, the use of a deadly weapon in self-defense does not summarily equate to the use of deadly force. DeLuge, 710 So.2d at 84 (citing Howard v. State, 698 So.2d 923, 925 (Fla. 4th DCA 1997)). Deadly force occurs "where the natural, probable, and foreseeable consequences of the defendant's acts are death." Cruz, 971 So.2d at 182 (citing DeLuge, 710 So.2d at 84; Garramone v. State, 636 So.2d 869, 871 (Fla. 4th DCA 1994)). In Florida, to date, the only type of force that has been held to be deadly force as a matter of law is the discharge of a firearm. Id.

         Arguably, it was error for Copeland's trial counsel to have requested the deadly force jury instruction because it is undisputed that Copeland never fired his gun or attempted to discharge his gun during his altercation with Twigg. See Marty v. State, 210 So.3d 121, 125-26 (Fla. 2d DCA 2016) (holding that trial counsel was ineffective for requesting self-defense instruction involving deadly force instead of nondeadly force because when "there is no dispute that [the defendant] never fired his gun, there can be no dispute that [the defendant] used nondeadly force rather than deadly force," and "[t]hus, the only self-defense instruction that fits [those] undisputed facts . . . is an instruction for the justified use of nondeadly force"); Stewart, 672 So.2d at 868 (holding that the defendant was entitled to an instruction on justifiable use of nondeadly force in an aggravated assault prosecution, but not to an instruction on deadly force, when the defendant used a gun, but only waved it without firing it); see also Rivero v. State, 871 So.2d 953, 954 (Fla. 3d DCA 2004) ("The use-of-force statute looks to the amount of force which is actually used. Pointing a firearm ...


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